SooperKanoon Citation | sooperkanoon.com/628145 |
Subject | Property;Civil |
Court | Punjab and Haryana High Court |
Decided On | Aug-24-2005 |
Case Number | Regular Second Appeal No. 2957 of 1988 |
Judge | M.M. Kumar, J. |
Reported in | (2006)142PLR118 |
Acts | Registration Act, 1908 - Sections 1(2) and 17; Transfer of Property Act, 1882 - Sections 1, 54 and 59; Evidence Act - Sections 68; Reorganisation Act, 1956; Code of Civil Procedure (CPC) , 1908 - Sections 100 |
Appellant | Amar Singh and anr. |
Respondent | Sarwan Singh and ors. |
Appellant Advocate | G.S. Bhatia and; P.S. Baath, Advs. |
Respondent Advocate | Dinesh Nagar, Adv. |
Disposition | Appeal dismissed |
Cases Referred | Pursottam Dass v. S.M. Desoujza |
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. 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Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]civil - mortgage deed - registration of - section 1 of the transfer of property act, 1882 and indian registration act, 1908 - suit land was mortgaged in favour of respondents by unregistered deed - appellants failed to redeem land within stipulated time - respondents filed suit for declaration of title on ground of mortgage deed - trial court dismissed suit while holding that mortgage deed was not registered - respondents filed appeal - appellate court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - appellate court further held that mortgage deed although is not registered, was not required to be.....Code Contextecho "<div class='table-bordered'><b>Excerpt:</b><br/>";
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. 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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. 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Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]m.m. kumar, j.1. this is defendants' appeal filed under section 100 of the code of civil procedure, 1908 (for brevity, 'the code') challenging the view taken by the learned district judge, patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed ex.p1 in the year 1928. the view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the indian registration act, 1908 (for brevity, 'the registration act') was applicable to british india alone and it.....Code Context}
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. 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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 0include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
M.M. Kumar, J.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 1include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian Registration Act, 1908 (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 2include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 3include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 4include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 5include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 6include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 7include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 8include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Registration Act
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 9include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 10include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 11include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Transfer of Property Act
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 12include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
1. Short title.- This Act may be called the Transfer of Property Act, 1882.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 13include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Commencement.- It shall come into force on the first day of July, 1882.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 14include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 15include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 16include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 17include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Section 54, Paragraph 2 and 3, 59 107 and 123.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 18include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian Registration Act, 1908 (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 19include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
'59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 20include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 21include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the Reorganisation Act, 1956 (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 22include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 23include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 24include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 25include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 26include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 27include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 28include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
For the reasons recorded above, this appeal fails and the same is dismissed.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p style="text-align: justify;">6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p style="text-align: justify;">As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p style="text-align: justify;"> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p style="text-align: justify;">2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p style="text-align: justify;">3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p style="text-align: justify;">4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p style="text-align: justify;">Registration Act</p><p style="text-align: justify;">1. (1) xx xx xx xx</p><p style="text-align: justify;"> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p style="text-align: justify;">Transfer of Property Act</p><p style="text-align: justify;">1. Short title.- This Act may be called the <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a>.</p><p style="text-align: justify;"> Commencement.- It shall come into force on the first day of July, 1882.</p><p style="text-align: justify;"> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p style="text-align: justify;"> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p style="text-align: justify;"> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p style="text-align: justify;"> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p style="text-align: justify;"> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p style="text-align: justify;"> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p style="text-align: justify;"> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p style="text-align: justify;">5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p style="text-align: justify;">6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p style="text-align: justify;">7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p style="text-align: justify;">The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p style="text-align: justify;">In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p style="text-align: justify;"> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p style="text-align: justify;">8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p style="text-align: justify;">For the reasons recorded above, this appeal fails and the same is dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'amar-singh-anr-vs-sarwan-ors', 'args' => array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) ) $title_for_layout = 'Amar Singh and anr Vs Sarwan Singh and ors - Citation 628145 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '628145', 'acts' => '<a href="/act/50764/registration-act-1908-complete-act">Registration Act, 1908</a> - Sections 1(2) and 17; <a href="/act/51778/transfer-of-property-act-1882-complete-act">Transfer of Property Act, 1882</a> - Sections 1, 54 and 59; Evidence Act - Sections 68; <a href="/act/51645/states-reorganisation-act-1956-complete-act">Reorganisation Act, 1956</a>; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100', 'appealno' => 'Regular Second Appeal No. 2957 of 1988', 'appellant' => 'Amar Singh and anr.', 'authreffered' => '', 'casename' => 'Amar Singh and anr. Vs. Sarwan Singh and ors.', 'casenote' => 'Civil - Mortgage Deed - Registration of - Section 1 of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 - Suit land was mortgaged in favour of respondents by unregistered deed - Appellants failed to redeem land within stipulated time - Respondents filed suit for declaration of title on ground of mortgage deed - Trial Court dismissed suit while holding that mortgage deed was not registered - Respondents filed appeal - Appellate Court allowed appeal by holding that respondents were entitled to declaration to the effect that they have become absolute owner of suit land because appellants being mortgagor had failed to redeem property mortgaged to them with prescribed time - Appellate Court further held that mortgage deed although is not registered, was not required to be registered in year 1928 as Act, 1908 was applicable to British India alone and it was not applicable to Pepsu - Hence, present appeal - Held, an unregistered document would be admissible because provisions of Act, 1908 and Act, 1882 were not extended to Pepsu - Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending provisions of Act, 1882 or Act, 1908 to Punjab - It is evident that mortgage deed was executed in favour of respondents and at that time neither Act, 1908 nor Act, 1882 were applicable to State of Patiala, which later on merged into State of Pepsu and then Punjab - It was further provided by Section 1 of Act, 1882 that any principle of said statute may by notification in official gazette be extended to whole or any part of said territory by State Government concerned - Admittedly, in this case area is in State of Punjab and Act, 1882 had not been extended to State of Patiala being not part British India in 1928 - Therefore, registration of the mortgage deed is not required and judgment of first Appellate Court deserves to be approved - Hence, appeal dismissed - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference: It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period.', 'caseanalysis' => null, 'casesref' => 'Pursottam Dass v. S.M. Desoujza;', 'citingcases' => '', 'counselplain' => ' G.S. Bhatia and; P.S. Baath, Advs.', 'counseldef' => ' Dinesh Nagar, Adv.', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p>M.M. Kumar, J.</p><p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:</p><p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:</p><p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.</p><p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.</p><p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.</p><p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.</p><p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:</p><p>Registration Act</p><p>1. (1) xx xx xx xx</p><p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.</p><p>Transfer of Property Act</p><p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.</p><p> Commencement.- It shall come into force on the first day of July, 1882.</p><p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.</p><p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.</p><p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:</p><p> Section 54, Paragraph 2 and 3, 59 107 and 123.</p><p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'</p><p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.</p><p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.</p><p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.</p><p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.</p><p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:</p><p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:</p><p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....</p><p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.</p><p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.</p><p>For the reasons recorded above, this appeal fails and the same is dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR118', 'ratiodecidendi' => '', 'respondent' => 'Sarwan Singh and ors.', 'sub' => 'Property;Civil', 'link' => null, 'circuit' => null ) ) $casename_url = 'amar-singh-anr-vs-sarwan-ors' $args = array( (int) 0 => '628145', (int) 1 => 'amar-singh-anr-vs-sarwan-ors' ) $url = 'https://sooperkanoon.com/case/amp/628145/amar-singh-anr-vs-sarwan-ors' $ctype = ' High Court' $caseref = 'Pursottam Dass v. S.M. Desoujza<br>' $content = array( (int) 0 => '<p>M.M. Kumar, J.', (int) 1 => '<p>1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned District Judge, Patiala in his judgment and decree dated 3.9.1988 holding that the plaintiff-respondents along with defendant-respondent 6 were entitled to a declaration to the effect that they have become absolute owner of the suit land because the defendant-appellants being the mortgagor had failed to redeem the property mortgaged to them by mortgage deed Ex.P1 in the year 1928. The view taken is that the mortgage deed although is not registered, was. not required to be registered in the year 1928 as the Indian <a>Registration Act, 1908</a> (for brevity, 'the Registration Act') was applicable to British India alone and it was not applicable to Pepsu. In that regard reliance has been placed on a judgment of Lahore High Court in the case of Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495. The trial Court has dismissed the suit of the plaintiff-respondents by excluding from consideration the mortgage deed Ex.Pl on the ground that it was required to be compulsorily registered under Section 17 of the Registration Act. However, the learned lower Appellate Court accepted the appeal of the plaintiff-respondents on the basis of the arguments that in the year 1928, the Registration Act was not made applicable to the Erstwhile State of Pepsu nor Section 59 of the Transfer or Property Act, 1882 (for brevity, Transfer of Property Act') was applicable to Punjab. The view of the learned lower Appellate Court in this regard reads as under:', (int) 2 => '<p>6. The only contention raised by the counsel for the appellants is that in the year 1928 the provisions of Indian Registration Act were not applicable in the Erstwhile State of Patiala and as such the document being not computsorily registerable at that time has to be admitted in evidence. The contention of the counsel for the appellants is not without force. Section 59 of the Transfer of Property Act provides that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected either by a registered instrument signed by the mortgagor and attested by at least two witnesses. The Transfer of Property Act initially extended to the whole of British India but when India became independent after 1947 the expression' whole of India' was replaced by the words 'All the Provinces of India' and now it extends to the whole of India. The native States of India admittedly were not part of British India and the State of Patiala being a native State of India, the Transfer of Property Act did not extend to the same nor its Section 59 regarding compulsorily registration of the mortgages of immovable property securing a sum more than Rs. 100/-. It has been held in Maru Singh v. Mohru and Ors., A.I.R. 1929 Lahore 495 as under:', (int) 3 => '<p>As the provisions of Transfer of Property Act do not extend to Punjab, a mortgage-deed which Section 59 ordinarily requires to be attested is admissible in Punjab even without attestation and the absence of attesting witness does not contravene the provisions of Section 68 Evidence Act.', (int) 4 => '<p> It further confirmed that the provisions of Transfer of Property Act in respect of mortgages were not even applicable in Punjab much less the State of Patiala at the time of the execution of the mortgage-deed (Ex.P1) in the year, 1928. It is common knowledge that oral mortgages used to be in vogue earlier to the extension of provisions of Transfer of Property Act in Punjab. Accordingly the findings of the trial Court on issue No. l that mortgage deed (Ex.Pl) was inadmissible in evidence for want of registration has to be set aside. Mortgage-deed (Ex.P1) which is otherwise not disputed by the respondents is admissible in evidence and the respondents having not got redeemed the mortgage at any stage as observed by the trial Court, have lost their right of redemption by efflux of time thereby the plaintiff appellants have become absolute owners of the suit land.', (int) 5 => '<p>2. Mr. G.S. Bhatia, learned Counsel for the defendant-appellants in support of the appeal has submitted that although the Registration Act or Transfer of Property Act were not applicable but its general principles all the same continued to apply as these principles are based on sound public policy. Learned counsel has placed reliance on a DivK sion Benrh judgment of this Court in the case of Messrs. Ram Gopal Dula Singh v. Sar-dar Gurbux Singh Jiwan Singh and Ors. and has argued that in para 15 of the judgment, it has been categorically held with regard to the Transfer of Property Act, that the principles of the Transfer of Property Act would still be applicable to Punjab because they are based on justice, equity and good conscience, although the rules of procedure may not be applicable. According to the learned Counsel, if this is the situation with regard to Transfer of Property Act, it would equally be the position with regard to Registration Act. Learned counsel has placed reliance on two other judgments of Pepsu High Court in the cases of Hari Chand v. Kartar Singh A.I.R. 1952 Pepsu 56 and Mt. Parsini w/o Joginder Singh v. Wasan Singh Labh Singh and Anr. A.I.R. 1951 Pepsu 109 and argued that in both these cases the unregistered deeds were not accepted in evidence by the Pepsu High Court itself. According to the learned Counsel, the Registration Act has been made applicable to Pepsu according to the view taken in the aforementioned two judgments.', (int) 6 => '<p>3. Mr. Dinesh Nagar, learned Counsel for the plaintiff-respondents has pointed out that if the provisions of the original Registration Act are examined, then Section 1(2) thereof would show that the Registration Act was extended to whole of British India except such districts or tracts of country as the Provincial Government may exclude from its operation. Learned counsel has submitted that it was never extended to the State of Pepsu and, therefore, the view taken by the learned lower Appellate Court deserves to be upheld. Learned counsel has maintained that once the mortgage deed Ex. P1, which is although unregistered is accepted in evidence, then there is no hurdle in the way of the plaintiff-respondents to succeed as has been held by the learned lower Appellate Court. There is no other impediment except the want of registration which in fact is not applicable.', (int) 7 => '<p>4. Having heard learned Counsel for the parties, I am of the view that the opinion expressed by the learned lower Appellate Court does not call for interference which is to the effect that an unregistered document would be admissible because the provisions of the Registration Act and Transfer of Property Act were not extended to the State of Pepsu. Learned lower Appellate Court has categorically observed that oral mortgage used to be prevalent prior to extending the provisions of the Transfer of Property Act or the Registration Act to Punjab. Section 1(2) of the Registration Act as well as Section 1 and 59 of the Transfer of Property Act as originally stood are reproduced hereunder for a facility of reference:', (int) 8 => '<p>Registration Act', (int) 9 => '<p>1. (1) xx xx xx xx', (int) 10 => '<p> (2) It extends to the whole of British India, except such districts or tracts of country as the Provincial Government may exclude from its operation.', (int) 11 => '<p>Transfer of Property Act', (int) 12 => '<p>1. Short title.- This Act may be called the <a>Transfer of Property Act, 1882</a>.', (int) 13 => '<p> Commencement.- It shall come into force on the first day of July, 1882.', (int) 14 => '<p> Extent- It extends, in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part-B States, or in the States of Bombay, Punjab and Delhi.', (int) 15 => '<p> But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said States by the State Government concerned.', (int) 16 => '<p> And any State Government may, from time to time, by notification in the Official Gazette exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:', (int) 17 => '<p> Section 54, Paragraph 2 and 3, 59 107 and 123.', (int) 18 => '<p> Notwithstanding anything in the foregoing part of this section, Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian <a>Registration Act, 1908</a> (XVI of 1908), under the power conferred by the first section of that Act or otherwise.'', (int) 19 => '<p> '59. Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards,a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.', (int) 20 => '<p> Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.', (int) 21 => '<p>5. A perusal of Section 1(2) of the Registration Act envisages that the Act was to apply to the whole of the then British India. However, its application by provincial government could be excluded in respect of any districts or tracts of country obviously belonging to British India. Similar is the position with regard to the Transfer of Property Act. It is also evident that Pepsu was never a part of British India. A casual glance at the <a>Reorganisation Act, 1956</a> (for brevity, 'the Reorganisation Act') would show that Pepsu became part of Punjab in w.e.f. 1.11.1956.', (int) 22 => '<p>6. The matter is not res-integra. A Full Bench of this Court in the case of Shri Chand and Ors. v. Nathi (1983)85 P.L.R. 288, has taken the view that prior to the extension of Section 59 of the Transfer of Property Act to Punjab, the oral or unregistered mortgages were valid. In the instant case, admittedly, unregistered mortgage had been made in the year 1928. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the then State of Patiala which merged - into Pepsu and then into Punjab much later. In similar circumstances, the Full Bench in Shri Chand's case (supra) had held that such type of transaction at that time was, therefore, valid and legally enforceable one. It has further been held that it was wholly irrelevant with regard to the issue of validity of such a mortgage whether it was registered or not. The limitation therefore, is to run from the year 1928 which expired long back in 1958.', (int) 23 => '<p>7. The view taken by the Full Bench of this Court in Shri Chand's case (supra) came up for consideration of the Supreme Court in the case of Sampuran Singh v. Naranjan Kaurf : [1999]1SCR841 . Approving the judgment of the Full Bench in Shri Chand's case (supra), the Supreme Court observed as under:', (int) 24 => '<p>The Full Bench decision rightly overruled the decision of Inder Singh (1966)68 P.L.R. 408 as that decision wrongly based its conclusion on an earlier decision in the case of Pursottam Dass v. S.M. Desoujza, : AIR1950Ori213 . The facts in that case were that the mortgage was for an amount for more than Rs. - 100 and was unregistered which was executed after the Transfer of Property Act was made applicable to the State of Orissa hence the mortgage was invalid. It is for this reason it held that the period of limitation would only start after the expiry of 12 years of such invalid mortgage as such possession would perfect into a valid mortgage after the expiry of this period. Hence the Full Bench rightly held that the principle of Purshottam Dass was wrongly applied in Inder Singh. The Full Bench finally concluded:', (int) 25 => '<p>In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for the limitation for redemption has to run from the aforesaid date of June 14, 1948....', (int) 26 => '<p> We find no error committed in coming to the said decision by the Full Bench. No sustainable submission has been advanced to hold a contrary view.', (int) 27 => '<p>8. When facts of the present case are considered in light of the principles laid down by the Full Bench of this Court in Shri Chand's case (supra) and judgment of the Supreme Court in Sampuran Singh's case (supra), it becomes evident that the mortgage deed Ex.P.1 was executed in the year 1928. At that time neither the Registration Act nor Transfer of Property Act were applicable to the State of Patiala, which later on merged into the State of Pepsu and then Punjab. Section 59 of the Transfer of Property Act had not been extended to the territories which immediately before 1.11.1956 were comprised in Part B of State or in the State of Bombay, Punjab and Delhi. It was further provided by Section 1 of the Transfer of Property Act that any principle of the said statute may by notification in the official gazette be extended to whole or any part of the said territory by the State Government concerned. Admittedly, in this case the area is in the State of Punjab and the Transfer of Property Act had not been extended to the State of Patiala being not part the British India in 1928. Therefore, registration of the mortgage deed Ex.P. 1 is not required. The judgment of the lower Appellate Court, therefore, deserves to be approved.', (int) 28 => '<p>For the reasons recorded above, this appeal fails and the same is dismissed.<p>', (int) 29 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 30 $i = (int) 29include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109